Bansi vs Puran Singh

R.L. Anand, J.—This is a civil revision and has been directed against the order dated 17.12.1999 passed by the Civil Judge (Junior Division), Panipat, who dismissed the application of the Petitioner for the framing of additional issues.

The brief facts of the case are that Puran, decree-holder, now Respondent, filed a suit for possession by way of specific performance of the agricultural land fully described in the head note of the plaint, on the allegations that Bansi, the present Petitioner, vide agreement of sale dated 31.5.1976, agreed to sell the suit land @ Rs. 2,000/-per acre, after receiving Rs. 12,000/- and the sale deed was to be executed on or before 30.5.1977. It was also the averment of the Plaintiff in the suit that the possession of the land was handed over to him at the time of the agreement and that the Defendant No. 1 had purchased the suit land from the Custodian Department in a restricted auction for Harijans only. Defendant No. 1 is not complying with the terms of the agreement. Hence, the suit for possession. It may also be mentioned here that the Plaintiff got an injunction against Defendant No. 1-Petitioner, that he should not sell the property during the pendency of the suit. In spite of the injunction issued against Defendant No. 1, he sold the property to Defendants No. 2 to 7.

The suit was contested by the Defendants. One set of written statement was filed by Defendants 1 and 2. It was pleaded by Defendant No. 1 that he was not the owner of the suit land in the year 1976. Therefore, the question of entering into the agreement with the Plaintiff does not arise. Also, Defendant No. 1 denied that he ever delivered the possession to the Plaintiff. Defendant No. 2 alleged that he was a bona fide purchaser for consideration as he had purchased 40 kanals 2 marlas of land for a consideration of Rs. 30,000/-. A separate written statement was also filed by Defendants 3 to 7. Their plea was also that they are bona fide purchaser for consideration.

Replication was also filed and the following issues were framed:

Whether the Defendant No. 1 made an agreement to sell the suit land as alleged? If so to what effect ? OPP

Whether Defendant No. 1 handed over the possession of the suit land to the Plaintiff as alleged ? OPP

Whether the sale in favour of the Defendants was cancelled and revived again and then the Defendant No. 1 again executed an agreement to sell on 27.6.1981 ? If so to what effect ? OPP

Whether the Plaintiff is or was ready/willing to perform his part of the contract ? OPP

Whether the sale in favour of Defendant No. 2 does not confer any right upon her as alleged, if so, to what effect ? OPP

Whether the Plaintiff is entitled to the relief as prayed for ? OPP

Whether the suit liable to be stayed under Order 2 Rule 2 Code of CPC ? OPD

Whether the Plaintiff has no locus standi to file the present suit ? OPD

Whether the suit has not been properly valued for the purpose of court fee and jurisdiction ? OPD

Whether the suit is not maintainable in the present form ? OPD

Whether the Plaintiffs is estopped from filing the present suit by his own act and conduct ? OPD

Relief.

11-A. Whether the Defendants Nos. 3 to 7 are the bona fide purchaser of the suit land without notice if so, to what effect ? OPD

11-B. Whether the Defendants No. I, 3 to 7 are liable to be prosecuted ? OPD

Ultimately, Defendant No. 1 became absent from the suit and vide judgment and decree dated 1.5.1991, the suit of the Plaintiff was decreed with costs and the Defendants were directed to get the sale deed of the suit land executed in favour of the Plaintiff after receiving the remaining sale consideration of Rs. 5,575/- within two months. In case, the Defendants fail to do so within the time allowed, the Plaintiff shall be well within his right to move the court for execution of sale deed. The Defendant-judgment-debtor did not comply with the decree as a result of which, the Plaintiff-decree holder filed an execution. With the intervention of the court and through the Local Commissioner appointed by the court, the sale deed has been executed in favour of the decree-holder but the possession has not been delivered to him. The decree-holder filed the execution for the delivery of the possession. Objections were filed by the judgment-debtor and those objections are still pending in the court. During the pendency of the execution proceedings, the present Petitioner filed one more application praying that the executing court should frame the following issues, which also arise from the pleadings:

Whether the D.H. was ever given possession under agreement to sell by the Respondents/J Ds and if so, when the D.H. was dispossessed from the suit land ? OPDH.

Whether the sale of the land by State of Haryana in favour of Bansi was being Harijan and there was prohibitory clause/stipulation that the same could not be sold for a period of ten years and as such, whether the agreement to sell/sale is bad for non-compliance of prohibitory clauses; if so, to what effect ? OPDH

Whether any notice was serviced upon the J. Ds. as required under order 21 Rule 34 CPC, about draft sale deed requiring objections of the J. Ds. in respect of the sale deed, if so its effect ? OPDH.

Whether the draft sale deed is in consonance with the judgment and decree dated 1.5.1991 by the learned trial Court, if not, to what effect ? OPDH.

Whether this Court has jurisdiction to execute the decree ? OPDH.

The said application was contested by the decree-holder and after hearing the submissions of the counsel for the parties, the learned Civil Judge vide order dated 17.12.1996 dismissed the application, vide which it was prayed for striking off additional issues. In this manner the present revision.

I have heard the counsel for the parties and with their assistance have gone through the record of this case.

Counsel for the Petitioner submitted that the trial Court committed a patent illegality and a material irregularity when it dismissed the application. According to the counsel for the Petitioner, the Petitioner had only a restricted sale in his favour and, in these circumstances, he could not enter into any agreement of sale in favour of the Plaintiff. The decree for specific performance could not be granted in favour of the decree holder. This type of decree is a nullity in the eyes of law and, thus, objections can be taken-up even in the execution proceedings. It was also submitted by the counsel for the Petitioner that it was the case of the decree-holder in the plaint itself that he got the possession of the suit land at the time of the agreement of sale u/s 53-A of the Transfer of Property Act. Once he has taken the possession, how he can file the execution for delivery of possession. The decree-holder has not been able to show as to when he was dispossessed and by whom. It was also the submission of the counsel for the Petitioner that it was obligatory upon the executing court before ordering the registration of the sale deed through the intervention of the court, to issue a notice to the judgment-debtor and also to send the draft sale deed as required under Order 21 Rule 34, CPC. This was not done and, in these circumstances, the sale deed which has been executed in favour of the decree-holder is illegal and this point has to be adjudicated afresh in the execution proceedings. It was also submitted by the counsel for the Petitioner that the sale deed which has been executed in favour of the decree-holder is not in consonance with the decree and the judgment and that the executing court had no jurisdiction to execute the decree or to deliver the possession to the Plaintiff.

On the contrary, counsel for the Respondent-Puran submitted that the Petitioner has no locus standi to file the objections. He has already sold the property in favour of Defendants 2 to 7 (judgment-debtors 2 to 7). In the written statement, the Petitioner has taken a specific plea that he never delivered the possession to the Plaintiff. In these circumstances, the possession can be delivered by the executing court to the Plaintiff for the due discharge of the obligation under the contract and it is the solemn duty of the executing court to effectively execute the decree. It was also contended by the counsel for the Respondent that no plea as raised by the Petitioner is, now, open to him in the executing court as he never contested the suit. Rather, after filing the written statement, the Petitioner never supported his plea and now the executing court cannot go behind the decree unless the decree is nullity and in the present case, the decree is not a nullity. It was also pleaded by the counsel for the Respondent that the present application has been filed by the Petitioner in the trial Court just to delay and defeat the fruits of the decree. It was also submitted by the counsel for the Respondent that notice was given to the judgment-debtor under O.21 R. 34, CPC. This order is merely directory in nature and the non-compliance of the same will not vitiate the sale deed executed under the orders of the court unless the judgment-debtor is also to show that a serious prejudice has been caused to him by not sending the draft sale deed.

After considering the rival contentions of the parties, I am of the considered opinion that the present revision is totally devoid of any merit and deserves to be dismissed and that the application moved by the Petitioner for framing of the additional issues is a mala fide attempt, just to defeat and drag the proceedings so that the decree holder may be defeated in cutting the fruits of his decree. It may be mentioned here that the Petitioner took a specific plea before the trial Court that he was not in a position to sell the property. This plea was considered and in spite of that the suit was decreed. The decree has become final. It is a settled principle of law that the executing court has to execute the decree and cannot sit as a court of appeal over the decree unless the decree is a nullity. The Petitioner could plead before the trial Court that the suit for specific performance may not be granted as he was not the owner of the property or that his title was imperfect or that he was under any disability to sell the property in favour of the Plaintiff. In fact, he took the plea first but could not substantiate that plea before the trial Court. That issue has gone against the Petitioner. Further, the Petitioner has virtually shed his interest by selling the property in favour of Defendants No. 2 to 7. He is such a person that in spite of the injunction issued against him not to alienate the property, he sold the property by violating the provisions of law. Such a person who flouts the law, cannot have the courage to say that the decree is a nullity. Be that as it may, we have to see whether the decree which has been granted in favour of the decree holder is a nullity or not.

To continue with the discussion, it is the case of the Defendant himself before the trial Court that he never delivered the possession to the Plaintiff. If the Plaintiff has alleged in the plaint that the possession of the land was given to him at the time of agreement of sale, at the most, it is an admission. The Defendant could also establish that he never delivered the possession to the Plaintiff. Defendant No. 1, after filing the written statement, did not contest the suit. In these circumstances, it has to be inferred that the Plaintiff never got the possession. When a suit for specific performance is granted, either actual or symbolic possession is delivered, depending upon the nature of the contract. If the Plaintiff was delivered actual physical possession, there was hardly any need of cry on his part to crave for the possession. It is not shown, prima facie, on the record that the Plaintiff was dis-possessed by a third person and, therefore, he can only file a suit for possession against the third person. Rather, the case of the parties is that the possession over the suit land is with the subsequent transferees against whom the decree has also been passed for specific performance and, in these circumstances, they are bound to join the judgment-debtor for the effectiveness of the decree. This is the nature of the relief in the suit for specific performance.

In Darshan Kaur Vs. Gurdial Singh and others, , it was observed that where the judgment-debtor does not appear despite notice and is proceeded against ex parte, the provisions of Order 21. R. 34 of the Civil P.C. that the Court shall cause a draft of the sale deed to be executed to be served upon the judgment-debtor for inviting his objections, if any, to it, must be held to be merely directory and non-compliance thereof will not vitiate the sale deed executed under orders of the court unless the judgment-debtor is able to show that prejudice was caused to him by the draft sale deed not being served upon him and opportunity thereby being denied to him to file his objections against it. In the present case, the Petitioner never took the suit seriously and the decree was ex parte qua him.

Further, it has been held in Makhan Singh and Ors. v. Tara Singh and Ors. (1980) 82 PLR 479, that where a decree for a specific performance has been passed and execution has been filed, the decree-holder is entitled to be put in possession of the property with respect of which suit was decreed even if no specific direction to put the decree-holder in possession is given in the judgment or the decree. It was further held that, the second execution application for specific performance is maintainable when the first execution application was consigned without being satisfied.

In Pt. Balmukand Vs. Veer Chand, , it was observed that where a decree for specific performance of a contract of sale is silent as to the relief of delivery of possession even though claimed in the suit, the executing Court is still competent to deliver possession and it is necessary in a suit for specific performance either to separately claim possession or for the Court to pass a decree for possession. A decree for specific performance of contract includes everything incidental to be done by one party or another to complete the sale transaction, the rights and obligations of parties in such a matter being indicated by Section 55 of the Transfer of Property Act.

In Gyasa Vs. Smt. Risalo, , it was held that when contract of sale is silent as to delivery of possession and the Defendant is in exclusive possession of property, the decree-holder is entitled to claim possession in execution of the decree.

In Chain Singh Vs. Mohar Singh and Another, , it was observed that it will always depend upon the facts and circumstances of each case whether to frame or not to frame the issues and if the objections at the face of it are frivolous, mala fide and intended to obstruct the process of law, there is no restriction on the powers of the court to summarily reject such objections. I have just stated above that the application filed by the Petitioner was just to delay and defeat the decree, therefore, the executing court was justified in disallowing that application summarily but in the present case, a good discussion has also been made.

Faced with the difficulty, counsel for the Petitioner invited my attention to Kesar Singh and Ors. v. Sadhu, 1996 PLJ 186, and submitted that the plea of nullity of decree can be raised even in execution when the matter goes to the root of jurisdiction.

The judgment relied upon by the counsel for the Petitioner is not applicable to the facts in hand. In the cited case, the decree was a nullity since the Punjab Custom (Power to Contest) Amendment Act, 1973, was applicable at the time of the passing of the decree by the appellate court. In the present case, the plea of the Petitioner is that he was a restricted owner and he could not alienate the property. This plea in my opinion, is not open to him. He himself had sold the property to judgment-debtors 2 to 7. Moreover, at the most, it can be said that the Petitioner had an imperfect title. He could not sell the property for a period of 10 years at the most. In this case, 10 years have already elapsed. The Petitioner could take the plea before the trail Court that the nature of the suit is such that the decree for specific performance cannot be granted. The Petitioner has failed in all these respects and, now, it is not open to him to say that the decree was a nullity. In the opinion of this Court, the decree was not a nullity at all.

Counsel for the Petitioner, then, relies upon R. Chandevarappa and Others Vs. State of Karnataka and Others, . This judgment is, again, not helpful to the Petitioner. In this case, there was assignment of agricultural land by the Govt, to members of S.C. and S.T. for personal cultivation prohibiting alienation. In these circumstances, it was observed that the prohibitory clause is absolute in terms and stipulated to effectuate the constitutional policy and any alienation of the land by the assignee is violative of the prohibitory clause and hence invalid, but this rule nowhere states that if the decree has been procured, whether such a decree will become nullity.

In this case, the issues have already been framed as back as on 15.9.1998. Objections are pending before the Court. At the time of framing of the earlier issues, it was specifically stated by the Objector that no other issue arises or is being claimed. After framing of three issues on 15.9.1998, no other issue was pressed or claimed by the parties. No doubt, it is true that it is the duty of the court to frame the issues but the issues which are not necessary for the adjudication of the objections are not supposed to be struck.

Resultantly, this revision is without any merit and is dismissed with no order as to costs.